In 1996, Quebec adopted a legislative
scheme to address systemic wage discrimination against women. The Pay Equity
Act set out a process aimed at ensuring that employers provided equal pay
for work of equal value. Under ss. 40‑43, which have now been repealed,
employers had a continuous obligation to maintain pay equity and adjust
compensation accordingly. After 10 years, the
compliance with the Act had not met expectations.

In 2009, the Act to amend the
Pay Equity Act replaced the ongoing obligation to maintain pay equity with
a system of mandatory audits every five years in which the employer is only
required to rectify the wages going forward. Under s. 76.5 of Pay
Equity Act, adjustments in compensation apply from the date of the posting of
the results of the audit process. Section 76.3 provides no requirement that the
audit posting include the date on which any pay inequity emerged. Under s. 103.1
para. 2, no compensation adjustments can be assessed by the Pay Equity
Commission prior to the date of the audit posting. If, however, an employer
acts “in
bad faith or in an arbitrary or discriminatory manner”, adjustments in compensation and interest
apply from the date of that conduct pursuant to s. 76.9 and the Pay Equity
Commission may make a determination to that effect under s. 101
para. 3. The respondents brought proceedings seeking
a declaration that these amendmentsviolated the equality rights in s. 15
of the Canadian Charter of
Rights and Freedoms.

The trial
judge held that ss. 76.3 and 76.5 breached s. 15. The declaration of
invalidity was suspended for one year. The Court of Appeal upheld the trial
judge’s finding that ss. 76.3 and 76.5 breached s. 15 of the Charter.
In addition, it concluded that s. 103.1 para. 2 violated s. 15.
Regarding the cross‑appeal, both the trial judge and the Court of Appeal
held that the unions did not meet their onus of proving the
unconstitutionality of the provisions in the 2009 Act to Amend the Pay Equity Act that
repealed 40‑43 of the Pay Equity Act.

Held (Côté, Brown and Rowe JJ. dissenting on the appeal): The appeal and the cross‑appeal should be dismissed. Sections 76.3, 76.5 and 103.1 para. 2of the Pay Equity Act are unconstitutional.

Per McLachlin C.J. and Abella,
Moldaver, Karakatsanis, Wagner and Gascon JJ.: Sections 76.3,
76.5 and 103.1 para. 2 of the Pay Equity Act
violate s. 15(1) of the Charter. The purpose of
the Act is to provide “equal pay for work of equal value”, a strategy
that recognizes that since “women’s work” is valued less than “men’s work”, the
pay and status are lower and the result is systemic wage discrimination.Leaving wage
inequities in place makes women “the economy’s ordained shock absorbers”. Pay
equity legislation, such as the Act at issue here, accordingly targets
women in redressing the pay discrimination they have suffered. The provisions
at issue, which alter the way in which the legislation identifies and redresses
differences in men’s and women’s pay, therefore draw distinctions based on sex.

Assessed
on their own, and regardless of the prior legislative scheme, ss. 76.3,
76.5 and 103.1 para. 2 have a discriminatory impact. Any pay inequities emerging during the five
year period between audits go uncorrected until the next audit. Even when an
audit reveals the emergence of pay inequity during the previous five years,
only adjustment payments going forward are payable. This effectively gives an
amnesty to the employer for discrimination between audits. Employers are required to post the results of the audit, but not the
date on which pay inequity emerged, thus obscuring when adjustment payments
ought to have been made. Employees are thus deprived of the evidentiary
foundation for showing bad faith by the employer, which is the only route to
obtaining retroactive compensation. Further, retroactive compensation is only
available to sanction deliberate and improper behaviour in the conduct of
mandatory audits, not the discrimination that may otherwise be revealed by the
process. Inequities that subsequently emerge before the next audit will
therefore be immune from remedial redress except where the claimants can prove
intentional discrimination, an approach to discrimination long rejected by this
Court and at odds with the purpose of pay equity legislation, namely, to remedy
systemic discrimination.

Although the scheme purports to
address systemic discrimination, it in fact codifies the denial to women of
benefits routinely enjoyed by men — namely, compensation tied to the value of
their work. Men receive this compensation as a matter of course; women, under
this scheme, are expected to endure five year periods of pay inequity, and to
receive equal compensation only where their employer voluntarily acts in a non‑discriminatory
manner, or where they can meet the heavy burden of proving the employer engaged
in deliberate or improper conduct. The scheme thus places barriers along the
path to equal pay for women. And it correspondingly tolerates undervaluation of
women’s work whenever women cannot clear the specific hurdle of proving that
they should be paid equally because their employer acted improperly. Absent
such behaviour, working women are told that they must simply live with the
reality that they have not been paid fairly, even where a statutorily mandated
audit has made that fact clear.

Section 15(2) has no application in cases
such as this one. It protects ameliorative programs for disadvantaged groups
from claims by those the program was not intended to benefit that the ameliorative
program discriminates against them. Section 15(2) cannot bar s. 15(1)
claims by the very group the legislation seeks to protect.

None of
the impugned provisions can be justified under s. 1. Encouraging increased
employer compliance by lightening the burden through denial of retroactive
payments can, in some circumstances, constitute a pressing and substantial
objective. Although there is no empirical or other evidence to show how denying
retroactive compensation has advanced this objective, reducing the employer’s
obligations can be seen, at a theoretical level, to be rationally connected to increased
employer compliance. At the minimal impairment stage, however, there is
virtually no evidence that other means of encouraging employer compliance —
such as stricter enforcement of the Pay Equity Act’s requirements
through the offence provisions contained within it — would be ineffective.
Therefore, eliminating pay equity obligations except for adjustments every five
years does not impair female employees’ equality rights as little as reasonably
possible, it suspends their rights to be free from pay discrimination for five
year intervals.

Quebec
has failed to demonstrate that the law satisfies the overall balancing
requirement of the s. 1 analysis. The harmful effects
are to create barriers to access for equitable pay for
the very people whom this pay equity scheme was designed to help; the benefits are, at the moment, indiscernible and speculative given
the absence of evidence. Reducing employers’
obligations in the hopes of encouraging compliance subordinates the substantive
constitutional entitlement of women to be free from
discrimination in compensation, to the willingness of employers to comply with
the law.As for the information in the audit
posting, the justifications analysis fails at every step. Quebec has not
provided any explanation for the exclusion of the date when pay inequities re‑emerged
other than to say that it is not relevant information under the new scheme.
Since the five year gap between remedial compensation has been found to be
unconstitutional, the date on which pay inequities re‑emerge is plainly
relevant information.

As
for the cross‑appeal, the onus of proving the unconstitutionality
of the provisions in the 2009 Act to Amend the Pay Equity Act that repealed 40‑43 of the Pay Equity Act was not met.

PerCôté, Brown and Rowe JJ. (dissenting on the appeal): The
appeal should be allowed and the cross‑appeal dismissed. Sections 76.3,
76.5 and 103.1 para. 2 of the Pay Equity Act do not create a
discriminatory distinction that infringes s. 15 of the Canadian Charter
of Rights and Freedoms.

At
the first step of the analysis under s. 15(1) of the Charter, the
claimant must show not only the mere existence of a distinction in the Act,
but also a form of disadvantage flowing from that distinction. Because the Act entails distinctions that may affect a group consisting
essentially of women, it would be absurd if an approach whose focus was on
discriminatory effects did not deal first with the issue of the disadvantage
resulting from one or more of those distinctions, at least on a prima facie
basis. Pay equity for private sector enterprises is a
creation of the Quebec legislature and does not have constitutional status. It
is not appropriate to compare the amendments to the Act with the
previous version of the Act. Such an approach would have the effect of
constitutionally entrenching one mechanism that confers benefits on a group to
which an enumerated or analogous ground applies, to the detriment of other,
equally valid, mechanisms. It would then no longer be open to the legislature
to explore other avenues.

The
employees in question have enjoyed a significant benefit. The Act, as a
whole, creates a complete hybrid scheme that allows for a periodic review of
compensation and provides a retroactive remedy in case of abuse. It thus
addresses the problem of systemic discrimination in addition to, among others, that
of intentional discrimination.
The Act’s ameliorative effect becomes clear when the situation is
considered through the lens of the comparator group. Thus, employees in an
enterprise that has fewer than 10 employees are excluded from the scope of the Act
and do not benefit from a periodic audit of their compensation. They cannot use
a complaint mechanism comparable to the one provided for in the Act
should their employer modify their duties without taking into account the
insidious factors at the root of the systemic discrimination from the
standpoint of a correlative audit of their remuneration.

At
the second step of the s. 15(1) analysis, it is necessary to determine
whether the amendments are discriminatory by considering whether they respond
to the actual capacities and needs of the members of the group or instead
impose a burden or deny a benefit in a manner that has the effect of
reinforcing, perpetuating or exacerbating their disadvantage. In this case, it
has not been established that the measure has a discriminatory effect on the
group. The state conduct does not widen — rather than narrowing — the gap
between the historically disadvantaged group and the rest of society.
Contextual factors like the ones set out in Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497 —
(1) a pre‑existing disadvantage, (2) a correspondence with
actual characteristics, (3) the impact on other groups and (4) the nature
of the affected interest — are helpful in determining whether a particular distinction
is discriminatory.

Although women face systemic
discrimination in matters of compensation, the impugned sections do not
perpetuate or reinforce the idea that women can be paid less simply because
they are women. The Act’s objective is to permanently eradicate pay
inequities by establishing a maintenance mechanism in ss. 76.1 to 76.9. This
new mechanism responds to the needs of the women concerned by effectively
preventing abuse by employers and also by providing them with a periodic audit
of their remuneration. The scheme established by the Act deals with only
one ground of discrimination, namely sex, and applies to only a small portion
of female employees in Quebec, those who hold positions in predominantly female
job classes in enterprises with 10 or more employees. There is no doubt that
work is an important aspect of life and that, for many people, it is a large
part of their identity. In enacting the Act, the Quebec legislature has
recognized the nature of pay equity and its importance for women. However, the
adopted measures have not constitutionally entrenched pay equity such that they
would be impossible to modify.

Because it is the group to which an enumerated
ground applies that is raising the discriminatory nature of the effects of a
law whose specific object is the amelioration of conditions of the group’s
members, the s. 15(2) analysis must be deferred until after the entire
s. 15(1) analysis has been completed. If a court were to follow the approach proposed in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, according to which it must be determined whether
s. 15(2) applies before turning to the second step of the s. 15(1)
analysis so as to make it
unnecessary to conclude that the equality guarantee has been violated before
saving the impugned measure, the effect would be to
terminate the analysis prematurely. The order set out
in Kapp should be followed in any situation in which the claimant is not a member of the group to which the law applies. In the instant case, even it were to be
held that the specific mechanism created by the statutory amendments can be
considered discriminatory, the Act as a whole should be protected under
s. 15(2). There is no doubt that the Act genuinely has the
promotion and achievement of substantive equality as its object, as it provides
for measures to combat systemic discrimination.

Canada’s declaration in respect of Article 11(1)(d) made upon
ratification of the Convention on the Elimination of All Forms of
Discrimination against Women, Annex A, No. 20378, January 9,
1982, 1257 U.N.T.S. 496 [declaration withdrawn May 28, 1992, 1676 U.N.T.S.
554].

Colleen Bauman and Erin Moores, for the interveners The
Professional Institute of the Public Service of Canada, The Canadian
Association of Professional Employees, The Association of Canadian Financial
Officers and The Professional Association of Foreign Service Officers.

The judgment of McLachlin C.J. and Abella,
Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by

abella
J. —

[1]In 1996, Quebec adopted a legislative scheme to
address systemic wage discrimination against women. The Pay Equity Act,
S.Q. 1996, c. 43 (now CQLR, c. E-12.001), set out a process of reporting,
planning, comparison, evaluation and adjustment payments aimed at ensuring that
employers provided equal pay for work of equal value. Once that goal — pay
equity — had been achieved, the Act imposed a continuing obligation on
employers to maintain it. And whenever employers failed to maintain pay equity,
the Actgave employees the right to challenge the failure and
have it fully remedied immediately.

[2]After 10 years, the Government of Quebec found
that compliance with the Act had not met expectations. In 2009, it
adopted the Act to amend the Pay Equity Act, S.Q. 2009, c. 9, which
replaced the ongoing obligation to maintain pay equity with a system of
mandatory audits every five years. When an audit revealed the failure to
maintain pay equity, the employer was only required to rectify the wages going
forward. Unless the employer acted arbitrarily or in bad faith, he or she was
not required to compensate for wage inequities that emerged between audits.

[3]Several unions challenged the amendments on the
basis that they violated the equality rights in s. 15 of the CanadianCharter
of Rights and Freedoms. The Quebec courts agreed, and parts of the
legislative provisions amending the Pay Equity Act were struck down. The
declaration of invalidity was suspended for one year.

[4]This is an appeal by Quebec, arguing that there
is no breach of s. 15 of the Charter, and, if there is, it can be
justified under s. 1. There was a cross-appeal by the unions seeking to have
additional provisions declared unconstitutional.

[5]I agree with the Quebec courts and would dismiss
both the appeal and the cross-appeal.

Background

[6]The first Canadian efforts to close the gap
between men and women’s wages in the 1950s were called “equal pay for equal
work” and focused on wage gaps between men and women in the same job. Because
this approach failed to capture the systemic aspect of wage discrimination, it
was replaced by the concept of “equal pay for work of equal value”, a wider and
more nuanced strategy that recognized that since “women’s work” is valued less
than “men’s work”, the pay and status are lower and the result is systemic wage
discrimination (Beth Bilson, “The Ravages of Time: The Work of the Federal Pay
Equity Task Force and Section 11 of the Canadian Human Rights Act”
(2004), 67 Sask. L. Rev. 525, at p. 526; Richard Anker, “Theories of
occupational segregation by sex: An Overview” (1997), 136 Int’l Lab.
Rev. 315; Mary Cornish, “Closing the Global Gender Pay
Gap: Securing Justice for Women’s Work” (2007), 28 Comp. Lab. L. & Pol’y
J. 219, at pp. 223-25).

[7]Two Royal Commissions contributed to the revised
approach which replaced “equal work” with “equivalent” work or work of “equal
value”. The first, in 1970, was the ground-breaking Report of the Royal
Commission on the Status of Womenin Canada. It noted the
persistence of occupational segregation and systemic wage discrimination
notwithstanding that there had been laws requiring equal pay for equal work
since the 1950s (paras. 236-37). It recommended that “the concept of skill,
effort and responsibility be used as objective factors in determining what is
equal work” (para. 239 (emphasis deleted)), a recommendation that was
ultimately reflected in s. 11 of the Canadian Human Rights Act, R.S.C.
1985, c. H-6.[1]

[8]In 1984, the Report of the Commission on
Equality in Employment concluded that “equal pay for work of equal value
should be part of all employment equity programs” (p. 261). That meant adopting
policies “looking at those jobs in which women predominate and comparing their
wage rates with those . . . jobs at a comparable level in which men
predominate. If a wage difference is found, it then becomes a question of
trying to determine whether it is a legitimate or fair one” (p. 244). Leaving
wage inequities in place makes women “the economy’s ordained shock
absorbers” (p. 234).

[9]These recommendations reflected approaches found
in international instruments. The International Labour Organization (ILO), for
example, adopted its Convention Concerning Equal Remuneration for Men and
Women Workers for Work of Equal Value (No 100), Can. T.S. 1973 No. 37, in
1951, which imposed an obligation on ratifying states to apply the principle of
“equal remuneration for men and women workers for work of equal value”
(ratified by Canada in 1972). The same principle is embodied in Art. 11(1)(d)
of the 1979 United Nations Convention on the Elimination of All Forms of
Discrimination Against Women, 1249 U.N.T.S. 13 (ratified by Canada in
1981).[2]

[10]In 1975, Quebec adopted s. 19 of its Charter of Human Rights
and Freedoms, S.Q. 1975, c. 6 (now CQLR, c. C-12), which states that “every
employer must, without discrimination, grant equal salary or wages to the
members of his personnel who perform equivalent work at the same place.”
The regime for ensuring compliance with s. 19 relied on employee complaints to
the Commission des droits de la personne. It proved to be ineffective.

[11]Quebec adopted a more proactive scheme in its
1996 Pay Equity Act. Section 1 of the Act sets out its purpose as
being “to redress differences in compensation due to the systemic gender
discrimination suffered by persons who occupy positions in predominantly female
job classes”. Rather than relying on individual complaints, the Act
imposed ongoing legal obligations on employers to measure and correct pay
inequity, and set out processes for ensuring compliance with those obligations.

[12]The Act applies to all employers — public
and private — with 10 or more employees.[3] Regardless of the number of employees, all employers must submit a
report on the implementation of the Act in their enterprises (s. 4).
Employers with between 10 and 49 employees are responsible for determining and
making adjustments to “afford the same remuneration, for work of equal value”
(s. 34). All employers with between 50 and 99 employees must create a pay equity
plan (s. 31), which is required to contain, among other features, the
identification of predominately female job classes, the methodology for
comparison and valuation, and the terms and conditions for adjustment payments
(s. 50). The largest employers (those with 100 or more employees) have to
establish a pay equity committee with representation from their employees (s.
16).

[13]Under ss. 40 to 43, which have now been
repealed, employers had a continuous obligation to maintain pay equity and
adjust compensation accordingly:

40. The employer shall, after adjustments in
compensation have been determined or a pay equity plan has been completed,
maintain pay equity in his enterprise.

In particular, the employer
shall ensure maintenance of pay equity upon the creation of new positions or
new job classes, the modification of existing positions or of the conditions
applicable to existing positions and the negotiation or renewal of a collective
agreement. When a collective agreement is being negotiated or renewed, the certified
association concerned or, if applicable, the bargaining agent appointed under
the Act respecting the process of negotiation of the
collective agreements in the public and parapublic sectors (chapter R-8.2) shall also ensure that pay equity is maintained. [As amended by 2006,
c. 6, s. 7.]

43. Where, because of changed circumstances in the
enterprise, the compensation adjustments or the pay equity plan are no longer
appropriate to maintain pay equity, the employer shall make the modifications
necessary to maintain pay equity.

[14]Section 40 confirmed that the obligation to
maintain pay equity was triggered by certain changes in the circumstances of
the enterprise, such as “the creation of new positions or new job classes, the
modification of existing positions or of the conditions applicable to existing
positions and the negotiation or renewal of a collective agreement”. If such
events occurred, an employer had to adjust compensation accordingly — and
prospectively. The employer’s failure to maintain pay equity under ss. 40 to 43
was to be remedied based on a complaints process:

100. Upon
receiving a complaint from an employee or a certified association representing
employees in an enterprise alleging that pay equity is not being maintained in
the enterprise, the Commission shall investigate the matter and determine,
where applicable, the measures to be taken to correct the situation, including
the establishment of a pay equity plan. Any required adjustments in
compensation shall bear interest at the legal rate as of the time they should
have been paid.

[15]As a result, the Pay Equity Commission had the
duty to investigate complaints regarding employers’ failure to maintain pay
equity. Where it found that the obligation to maintain pay equity had been
breached, it had the power to order adjustments in compensation retroactive to
the date on which pay inequity re-emerged.

[16] Despite specific deadlines set out in the Act,
in the 10 years following its enactment, only 47 percent of employers had
established a pay equity plan. Of the remainder, 38 percent had not initiated
the process to establish such a plan. Faced with this widespread
non-compliance, Quebec decided to reduce the employers’ obligation to maintain
pay equity, in the hope that doing so would lead to better compliance. The
result was the 2009 Act to amend the Pay Equity Act. There is no
evidence before this Court about whether compliance has improved as a result of
the amendments.

•Sections 76.1 to 76.11 were added, requiring pay
equity audits every five years and setting out a process for audits;[6] and

•Section 103.1 para. 2 was added, preventing
retroactive remedies for the period between audits.[7]

[18]Section 76.1 stipulates that once a pay equity
plan is established, employers must conduct a pay equity audit in their
enterprise every five years. After conducting the pay equity audit, the results
must be posted for 60 days. The posting must include a summary of the audit process
as well as a list of events leading to compensation adjustments. There is,
however, no requirement that the audit posting include the date on which any
pay inequity emerged (s. 76.3). Employees can request additional information
within 60 days of the posting (s. 76.4).

[19]Adjustments in compensation — plus interest —
apply from the date of the posting (s. 76.5). No compensation adjustments can
be assessed by the Pay Equity Commission prior to the date of the audit
posting (s. 103.1 para. 2). If, however, an employer acts in bad faith or in an
arbitrary or discriminatory manner, adjustments in compensation and interest
apply from the date of that conduct (s. 76.9) and the Pay Equity Commission may
make a determination to that effect (s. 101 para. 3).

[20]The unions brought proceedings in the Quebec
Superior Court seeking a declaration that these amendmentsviolated s.
15 of the Charter.

[21]The trial judge held that there was no inherent
constitutional problem with Quebec’s decision to repeal ss. 40 to 43 and impose
in their place a system of periodic mandatory audits (2014 QCCS 149). But he
agreed with the unions that the addition of s. 76.5 breached s. 15 of the Charter
because the denial of retroactive payments for pay inequities that emerged in
the period between audits led to significant financial losses for women and
unduly perpetuated pay inequity. He also found s. 76.3 breached s. 15 because
employers were not required to include the date of the changes in the audit
posting, and therefore employees could not know when adjustments in
compensation should start. The declaration of invalidity was suspended for one
year.

[22]The Court of Appeal upheld the trial judge’s
finding that ss. 76.3 and 76.5 perpetuate disadvantage for women by preserving
the pay inequity status quo and providing for up to five years of
amnesty for employers (2016 QCCA 1659). In addition, it concluded that s. 103.1
para. 2, the provision precluding the Pay Equity Commission from ordering
retroactive compensation, violated s. 15. It accepted for the sake of argument
that the objective of the 2009 amendments was [TRANSLATION]
[translation] “improving and
strengthening a former scheme that had been ineffective, particularly where the
maintenance of pay equity was concerned”, (para. 85 (CanLII)), but held that
ss. 76.3, 76.5 and, by implication, 103.1 para. 2 were neither rationally
connected, minimally impairing, nor proportionate to that objective.

[23]I agree with the Court of Appeal that
ss. 76.3, 76.5 and 103.1 para. 2 are unconstitutional.

Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.

[25]Since Andrews v. Law
Society of British Columbia,[1989] 1 S.C.R.
143, this Court has emphasized substantive equality as
the engine for the s. 15 analysis (R. v. Kapp, [2008] 2 S.C.R. 483; Quebec
(Attorney General) v. A,[2013] 1 S.C.R. 61; Kahkewistahaw First
Nation v. Taypotat, [2015] 2 S.C.R. 548). The test for a prima facie violation
of s. 15 proceeds in two stages: does the impugned law, on
its face or in its impact, create a distinction based on enumerated or
analogous grounds; if so, does the law impose “burdens or denies a benefit in a
manner that has the effect of reinforcing, perpetuating, or exacerbating . . .
disadvantage” (Taypotat, at paras. 19-20).

[26]The first step of the s. 15(1) analysis is not a
preliminary merits screen, nor an onerous hurdle designed to weed out claims on
technical bases. Rather, its purpose is to ensure that s. 15(1) of the Charter
is accessible to those whom it was designed to protect. The “distinction” stage
of the analysis should only bar claims that are not “intended to be prohibited
by the Charter” because they are not based on enumerated or
analogous grounds — which are “constant markers of suspect decision making or
potential discrimination” (Withler v. Canada (Attorney
General), [2011] 1 S.C.R. 396,
at para. 33; Taypotat, at para. 19, quoting Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 8). The
purpose, in other words, is to exclude claims that have “nothing
to do with substantive equality” (Taypotat, at para. 19, quoting Lynn Smith and William Black, “The Equality
Rights” (2013), 62 S.C.L.R. (2d)
301, at p. 336). For that reason it is not
appropriate, at the first step, to require consideration of other factors —
including discriminatory impact, which should be addressed squarely at the
second stage of the analysis. The focus must remain on the grounds of
the distinction.

[27]And when identifying the distinction and the
grounds for it, this Court in Withler rejected a search for “mirror
comparator” groups:

. . . a formal
analysis based on comparison between the claimant group and a “similarly
situated” group, does not assure a result that captures the wrong to which s.
15(1) is directed . . . . What is required is not formal comparison with a
selected mirror comparator group, but an approach that looks at the full
context. [para. 40]

A mirror comparator group
analysis “may fail to capture substantive inequality, may become a search for
sameness, [and] may shortcut the second stage of the substantive equality
analysis” (para. 60).

[28]At the second step of the s. 15(1) test, as this
Court said in Kapp (at paras. 23-24) and Withler (at para. 66),
it is not necessary or desirable to apply a step-by-step consideration of the
factors set out in Law v. Canada (Minister of Employment and Immigration),[1999] 1 S.C.R. 497, and no case since Kapp has applied one. The
focus is not on “whether a discriminatory attitude exists”, or on whether a
distinction “perpetuates negative attitudes” about a disadvantaged group, but
rather on the discriminatory impact of the distinction (Quebec v. A,at paras. 327 and 330 (emphasis deleted)).

[29]As previously noted, the purpose of the Pay
Equity Act is “to redress differences in compensation due to the systemic
gender discrimination suffered by persons who occupy positions in predominantly
female job classes”. The very premise underlying pay equity legislation is that
women have suffered discrimination in the way they are compensated in the
workforce. Pay equity legislation, such as the Act at issue here,
accordingly targets women in redressing the pay discrimination they have
suffered. And the impugned provisions target women, in more specific ways, to
that end. They set out how deficiencies in women’s pay, in comparison to
men, will be identified. They set out when women will — and will not —
receive compensation for those inequities. And they set out the information
that will — and will not — be made available about when those inequities emerge
to the women who may need to challenge them. The impugned provisions
therefore draw distinctions based on sex, both on their face and in their
impact.

[30]Before turning to
discriminatory impact, a brief word on s. 15(2). It has no application in cases
such as this one. It states:

Subsection (1) does not preclude any
law, program or activity that has as its object the amelioration of conditions
of disadvantaged individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

[31]Its purpose “is to save
ameliorative programs from the charge of ‘reverse discrimination’” (Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2
S.C.R. 670, at para. 41; Kapp). It protects ameliorative programs for
disadvantaged groups from claims by those the program was not intended to
benefit that the ameliorative program discriminates against them.

[32]In the case before us,
on the other hand, the argument is that parts of an ameliorative scheme violate
s. 15(1) because they have a discriminatory impact on women, the disadvantaged
group the scheme was intended to benefit. Section 15(2) cannot bar s. 15(1)
claims by the very group the legislation seeks to protect and there is no
jurisprudential support for the view that it could do so.

[33] And there can be no doubt that ss. 76.3, 76.5,
and 103.1 para. 2 have a discriminatory impact, but not because these
provisions differ from the previous legislation. I do not share the unions’
view that once Quebec adopted ss. 40 to 43, it was constitutionally required to
keep them on the books, so that any modification in the type or extent of
protection afforded by those provisions would amount to a constitutional
violation. To accept that submission in these circumstances would
constitutionalize the policy choice embodied in the first version of the Act,
improperly shifting the focus of the analysis to the form of the law,
rather than its effects. Instead, there is a discriminatory impact because,
assessed on their own and regardless of the prior legislative scheme, the
impugned provisions perpetuate the pre-existing disadvantage of women. Section 76.5 stipulates that absent a showing of bad faith on the part
of the employer pursuant to s. 76.9, adjustment payments are payable only from
the date of the audit posting every five years. This has the effect of making
the employer’s pay equity obligation an episodic, partial obligation. Any pay
inequities emerging during the five year period between audits go uncorrected
until the next audit. Even when an audit reveals the emergence of pay inequity
during the previous five years, s. 76.5 stipulates that only adjustment
payments going forward are payable. As the trial judge and Court of Appeal
found, this effectively gives an amnesty to the employer for discrimination
between audits. And that amnesty is cemented by the addition of s. 103.1 para.
2 barring the Pay Equity Commission from assessing adjustment payments prior to
the date of the posting.

[34]Further exacerbating the disadvantage created by s.
76.5 is the addition of s. 76.3, which, as the trial judge found, denies employees and unions the information they need to challenge
decisions employers make as a result of pay equity audits. Section 76.3
requires employers to post the results of the audit, but not the date on which
pay inequity emerged, thus obscuring when adjustment payments ought to have
been made and stripping the posting requirement of much of its meaning. Without
information about when pay inequities emerge, employees are deprived of the
evidentiary foundation for showing bad faith by the employer, which is the only
route to obtaining retroactive compensation for inequities emerging between
audits. And the absence of that information, in turn, puts the onus on
employees or unions to make requests for information under s. 76.4,
contradicting Quebec’s stated purpose of making the scheme more proactive and
effective. It is not at all clear that that process would guarantee complete
and timely disclosure of the necessary information.There is, in other
words, not only no right to challenge inequities in the period between audits,
there is also, through s. 76.3, a provision that makes challenging audit
results an opaque and difficult to access process.

[35]Sections 76.5 and 103.1 para. 2 of the Act
permit compensatory adjustment payments for the years between audits only if
the employer or the pay equity committee acted in bad faith. “Bad faith” is
well understood in Quebec’s labour and employment legislation. The wording used
in s. 76.9 of the Act — the employer cannot “act in bad faith or in an
arbitrary or discriminatory manner or exhibit gross negligence” —is the same as that in s. 47.2 of the
Quebec Labour Code, CQLR, c. C-27. And this wording has been
interpreted, notably by this Court in Noël v. Société
d’énergie de la Baie James, [2001] 2 S.C.R. 207, very narrowly to mean only conduct involving “malicious intent” or
that “exceed[s] the limits of discretion reasonably exercised” (para. 52).
Applied here, it means that retroactive compensation is only available to
sanction deliberate and improper behaviour in the conduct of mandatory audits,
not the discrimination that may otherwise be revealed by the process. That
means that once pay equity is achieved, any inequities that subsequently emerge
before the next audit will be immune from remedial redress except where the
claimants can prove intentional discrimination (that is, bad faith), an
approach to discrimination long rejected by this Court and at odds with the
purpose of pay equity legislation, namely, to remedy systemic
discrimination. Further, s. 76.3 denies employees and unions the information
they need to assess in a timely way — and possibly challenge — decisions
employers make as a result of pay equity audits.

[36] I agree with the trial judge and the Court of
Appeal that Quebec was entitled to change its approach to pay equity, but
whatever legislation it enacted had to be constitutionally compliant. If,
to point out just one example, s. 76.5 had required that adjustment payments be
made from the date the pay inequity re-emerged, rather than from the date that
the audit results were posted, then employers would not have a pay equity
amnesty for the period between audits. And there would be no discriminatory
impact.

[37]But the provisions at issue in this appeal have
a discriminatory impact on the legislation’s intended beneficiaries, resulting
in a prima facie infringement of s. 15 of the Charter. The
infringement occurs because when an audit reveals pay inequity, women are
denied retroactive compensation and denied information required to assess and
potentially challenge employer decisions.

[38]Although the scheme purports to address systemic
discrimination, it in fact codifies the denial to women of benefits routinely
enjoyed by men — namely, compensation tied to the value of their work. Men
receive this compensation as a matter of course; women, under this scheme, are
expected to endure five-year periods of pay inequity, and to receive equal
compensation only where their employer voluntarily acts in a non-discriminatory
manner, or where they can meet the heavy burden of proving the employer engaged
in deliberate or improper conduct. The scheme thus places barriers along the
path to equal pay for women. And it correspondingly tolerates undervaluation of
women’s work whenever women cannot clear the specific hurdle of proving that
they should be paid equally not merely because they are equal, but
because their employer acted improperly. Absent such behaviour, working women
are told that they must simply live with the reality that they have not been
paid fairly, even where a statutorily mandated audit has made that fact clear. In this way, the scheme, by privileging employers, reinforces one of
the key drivers of pay inequity: the power imbalance between employers and
female workers. By tolerating employer decision-making that results in unfair
pay for women, the legislature sends a message condoning that very power
imbalance, further perpetuating disadvantage.

[39]The impugned provisions, moreover, interfere
with access to anti-discrimination law under s. 19 of the Quebec Charter,
which guarantees the right to equal pay for work of equal value, and s. 10,
which guarantees the right to gender equality more generally. The impugned
provisions interfere with access to these rights because complaints covered by
the Pay Equity Act must be dealt with exclusively in accordance with the
provisions of that statute (see Quebec Charter,s. 49.1).
The impugned provisions of the Pay Equity Act cut off access to any remedy
for pay discrimination based on sex, except where there is evidence of bad
faith. That means that, for women covered by the Pay Equity Act, s. 19’s
promise of pay equity is a right without a remedy, except for forward-looking
adjustments every five years.

[40]In Vriend v. Alberta, [1998] 1 S.C.R.
493, this Court found a breach of s. 15 based on the “denial of access to remedial
procedures for discrimination” (para. 97). The same analysis applies
here, despite the fact that the legislated denial of access takes the form of a
periodic suspension of existing equality rights, rather than an outright
exclusion from the statutory scheme. In both cases the discriminatory impact is
obvious and significant. To provide no recourse for pay discrimination based on
sex, denies substantive equality to working women, entrenching and perpetuating
their pre-existing disadvantage (Andrews, at p. 183).

[41]Nonetheless, my colleagues imply that there is
no breach of s. 15(1) of the Charter because the Quebec legislature did
not create pay discrimination against women. No one has suggested that
it did. But when the government passes legislation in a way that perpetuates
historic disadvantage for protected groups, regardless of who caused their
disadvantage, the legislation is subject to review for s. 15 compliance (Vriend,
at para. 66).

[42]The result of finding that Quebec’s amendments
breach s. 15 in this case is not, as Quebec suggests, to impose a freestanding
positive obligation on the state to enact benefit schemes to redress social
inequalities. Nor does it undermine the state’s ability to act incrementally in
addressing systemic inequality. But s. 15 does require the state to ensure
that whatever actions it does take do not have a discriminatory impact (Vriend; Eldridge v.
British Columbia (Attorney General),[1997] 3
S.C.R. 624, at paras. 72-80). And there is no evidence
to support the in terrorem view advanced by my colleagues that finding a
breach would have a “chilling effect” on legislatures. That amounts to an
argument that requiring legislatures to comply with Charter standards
would have such an effect. Speculative concerns about the potential for
inducing statutory timidity on the part of legislatures has never, to date,
been an accepted analytic tool for deciding whether the Constitution has been
breached. Legislatures understand that they are bound by the Charter and
that the public expects them to comply with it. The courts are facilitators in
that enterprise, not bystanders.

[43]This brings us to s. 1. To establish that the prima
facie infringement of s. 15 is justified, Quebec has the burden of showing
that the impugned changes have a pressing and substantial objective, and that
the means chosen to achieve that objective are proportionate to it.

[44]I agree with the Court of Appeal that none of
the impugned provisions can be justified under s. 1, but would approach the
analysis somewhat differently, starting with ss. 76.5 and 103.1 para. 2.

[45]The first step is to identify the objective of
the impugned changes and, in turn, to determine whether it is pressing and
substantial. This Court has emphasized that “all steps of the Oakes test
are premised on a proper identification of the objective of the impugned
measure” (Toronto Star Newspapers Ltd. v. Canada, [2010] 1 S.C.R. 721, at
para. 20, per Deschamps J.). Where a court finds that a specific legislative
provision infringes a Charter right, the state’s burden is to justify that
limitation, not the whole legislative scheme. Thus, the “objective relevant to the s. 1 analysis is the objective of the
infringing measure, since it is the infringing measure and nothing else which
is sought to be justified” (RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144; R. v. K.R.J., [2016] 1 S.C.R. 906, at para. 62).

[46]The objective of the measure to be considered in
this case is therefore not the overall purpose of the 2009 changes, but rather
the objective of the specific limitations in ss. 76.5 and 103.1 para. 2
preventing female employees from getting compensation for wage inequities that
emerge during the period between five-year pay equity audits.

[47]Quebec says the objective for the denial of
compensation between the audits was to improve compliance by making the scheme
more “realistic”. Its approach, it says, takes into account the difficulties
inherent in the ongoing obligation to maintain pay equity, putting in place a
scheme that is easier to administer and more effective. Quebec
accordingly argues that one of the benefits of the 2009 changes is that it will
be easier to identify pay inequities as a result of the mandatory audits. The
constitutional challenge, however, is not to the periodic nature of audits, but
to the fact that whatever inequity is revealed by them cannot be retroactively
remedied. If Quebec’s s. 1 justification rises and falls on this contention,
there is no rational connection between the infringement — the denial of
retroactive compensation — and its stated objective.

[48]For the sake of completeness, however, I would
address a somewhat more specific framing of Quebec’s objective for which it has
not explicitly argued. Citing one of the unions’ experts, the Court of Appeal
identified one possible reading of the purpose of the scheme as being to
establish a [TRANSLATION] “compromise designed to avoid the financial and administrative
burdens that retroactivity would represent for enterprises” (para. 84). By
implication, lightening the burden through denial of retroactive payments would
encourage more employers to voluntarily comply. I am prepared to accept that
encouraging increased employer compliance can, in some circumstances,
constitute a pressing and substantial objective.

[49]Turning to rational connection, the legislation
was amended in 2009. Yet there is no empirical or other evidence to show how
these amendments have advanced the goal of ensuring employer compliance or why
denying retroactivity makes compliance easier. This makes the connection
tenuous at best. Nonetheless, I am also prepared to accept that reducing the
employer’s obligations can be seen, at a theoretical level, to be rationally
connected to increased employer compliance.

[50]But the justification starts to melt away at the
minimal impairment stage. Quebec has not demonstrated in any way how the means
it has chosen “impair the right . . . as little as
reasonably possible in order to achieve the legislative objective” (RJR-MacDonald, at para. 160) or, put
differently, the absence of “some other reasonable way for the legislature to
satisfy the objective that would not impair the right or freedom at issue, or
that would have less impact on the right or freedom” (Robert J. Sharpe and Kent
Roach, The Charter of Rights and Freedoms (5th ed. 2013), at p. 75).

[51]There is, in fact, virtually no evidence that
other means of encouraging employer compliance — such as stricter enforcement
of the Pay Equity Act’s requirements through the offence provisions
contained within it — would be ineffective, if indeed Quebec’s objective was to
improve compliance. The Act’s penalty provisions empower the relevant
enforcement bodies to charge employers with offenses for failing to comply with
their obligations, and to impose fines upon conviction (ss. 115 to 118). Yet
there is no evidence that Quebec has engaged in any meaningful effort to
enforce compliance by the employers who have not adopted pay equity plans or
taken the steps towards achieving and maintaining pay equity required by the
former provisions. Nor has Quebec provided any explanation for why there is no
such evidence. All it has said, in effect, is that it had tried a scheme
creating ongoing obligations to generate equitable pay for women, but since the
scheme did not live up to the province’s expectations, a new scheme eliminating
those obligations would be tried.

[52]Eliminating pay equity obligations except for
adjustments every five years does not impair female employees’ equality rights
as little as reasonably possible, it suspends their rights to be free
from pay discrimination for five year intervals.

[53]Moreover, if ensuring improved compliance is the
objective, Quebec has failed to demonstrate that the law satisfies the
“overall” balancing requirement of the s. 1 analysis. Lowering
the bar for compliance may or may not mean that more employers will make the
effort to comply, but not only is this “enticement” not minimally impairing of
the right to be free from discriminatory compensation, its harms far outweigh
its benefits. The harmful effects are to create barriers to access for
equitable pay; the benefits are, at the moment, indiscernible and speculative
given the absence of evidence.

[54]Lowering the bar in the hopes of compliance strikes
me, in any event, as being inconsistent with respect for substantive equality.
It is, to me, not unlike suggesting that if not enough employers comply with a
duty to build ramps for employees with disabilities, the requirement of
barrier-free workplaces will be replaced by an occasional duty to retrofit. In
the meantime, access will be denied to many in the hopes that it will become
available for some. This, aside from being disproportionately harmful to
equality seekers, means that it is constitutionally permissible to suspend the
equality rights of employees from time to time in order to encourage employers
to fulfill their legal anti-discrimination obligations.

[55]Section 15 protects women from discrimination. Pay
equity is a strategy that protects them from compensation
discrimination. It is not an episodic right or an occasional right. The
speculative suggestion that sacrificing that right in the hope of encouraging
the possibility of better compliance, does not outweigh the harm caused by the
limitation.

[56]Reducing employers’ obligations in the hopes of
encouraging compliance subordinates the substantive constitutional entitlement
of women to be free from discrimination in compensation to
the willingness of employers to comply with the law. It sends the policy
message to employers that defiance of their legal obligations under the Act will
be rewarded with a watering-down of those obligations. And it sends the message
to female workers that it is they who must bear the financial burdens of
employer reluctance. Any benefits of that approach are
outweighed by its harmful impact on the very people whom this pay equity scheme
was designed to help. This overall disproportionate harm means the infringement
caused by ss. 76.5 and 103.1 para. 2 cannot be justified under s. 1.

[57]As for s. 76.3, which excludes from the
information required in the audit posting the date when pay inequities
re-emerged, the justifications analysis fails at every step. Quebec has not
offered any specific pressing and substantial objective. Nor, in fact, has it
provided any explanation for the exclusion of this information other than to
say that it is not relevant information under the new scheme, which only
requires adjustments to be made every five years. Since the five year gap
between remedial compensation has been found to be unconstitutional earlier in
these reasons, the date on which pay inequities re-emerge is plainly relevant
information.

[59]As for the cross-appeal, both the trial judge
and the Court of Appeal held that the unions did not meet their onus of proving
the unconstitutionality of the provisions in the 2009 Act to Amend
the Pay Equity Act that repealed ss. 40 to 43 of the Pay
Equity Act (the continuing obligation to maintain pay equity). I agree. As
previously noted, it was open to Quebec to opt for a regime establishing
periodic review of the maintenance of pay equity. The s. 15 infringement occurs
because of the suspension of women’s equality rights during the five-year period
between audits, not because the maintenance review is periodic.

[60]The unions further argued in their cross-appeal
that the scheme breached s. 15 because employees are not involved in the pay
equity maintenance process. The unions have not, in my view, discharged their
onus of proving that the lack of employee participation has a discriminatory
impact in the circumstances of this case. After a careful review of the expert
evidence, the trial judge concluded that what matters is the information
available regarding maintenance, and not employee participation. The unions
have not shown that the trial judge made a reviewable error in that assessment.
As the Court of Appeal rightly stressed, the Charter does not
constitutionalize a single model of pay equity regime. The focus must remain on
discriminatory impact.

[62]Since the Canadian Charter of Rights and
Freedomscame into force, the case law on the guarantee of equality
provided for in s. 15 has undergone constant change owing to the fact that
the conceptual boundaries of the guarantee are not clearly defined. In 1989, in
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143,
McIntyre J. noted how delicate the task before the Court — defining the
scope of the equality guarantee and proposing an effective approach to
protecting it — would be. He characterized equality as “an elusive concept
[that], more than any of the other rights and freedoms guaranteed in the Charter
. . . lacks precise definition” (p. 164).

[63]Ten years later, in Law v. Canada (Minister
of Employment and Immigration), [1999] 1 S.C.R.
497, Iacobucci J. spoke of an almost inherent difficulty in the interpretation
of s. 15 of the Charter. He stated that “[t]he quest for equality
expresses some of humanity’s highest ideals and aspirations, which are by their
nature abstract and subject to differing articulations. The challenge for the
judiciary in interpreting and applying s. 15(1) of the Charter is
to transform these ideals and aspirations into practice in a manner which is
meaningful to Canadians and which accords with the purpose of the provision”
(para. 2).

[64]In our opinion, the reasons of Abella J. do
not reflect this quest for equality that has been required since Andrews.
As is clear from the companion case of Centrale des syndicats du Québec v.
Quebec (Attorney General), 2018 SCC 18, Quebec has been a pioneer in the
struggle against pay inequities in private sector enterprises in Canada. The
amendments to the Pay Equity Act, S.Q. 1996, c. 43 (now CQLR,
c. E‑12.001) (“Act”), are one part of its efforts in that regard.
From this perspective, it is profoundly unfair to Quebec society to claim that
these amendments are unconstitutional given that what the province’s National
Assembly has done is to replace an ineffective mechanism in order to ensure real
maintenance of pay equity by means of a process of audits of an enterprise’s
pay equity plan that are to be conducted every five years. The choice to adopt
this measure, which in any event ameliorates the conditions of the employees in
question in comparison with the former scheme, belongs to the elected
representatives of Quebecers and not to this Court.

[65]At issue in this appeal is the nature of Charter
rights. Charter rights are fundamentally negative in that they
preclude the state from acting in ways that would impair them. They do not
place the government under an obligation to act in order to obtain specific
societal results such as the total and definitive eradication of gender‑based
pay inequities in private sector enterprises. An interpretation of the Charter
that imposed a positive obligation such as that would change its nature
and confer on the courts the unusual responsibility of overseeing compliance
with it. Yet that is the consequence of our colleague’s interpretation.
Although government policies or legislation respecting human rights may be
designed to eliminate pay inequities in private sector enterprises, there is no
constitutional obligation to that effect: Auton (Guardian ad litem of) v.
British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at
para. 41.

[66]What the Charter is really intended to do
is to protect substantive equality by, among other things, ensuring that
government actions do not prevent members of enumerated or analogous groups
from benefiting from measures that are available to the general public: Andrews,
at p. 174; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1
S.C.R. 61, at paras. 322‑23. However, it does not create an
obligation of result that applies when the legislature adopts measures that are
specifically intended to narrow the gap between a group and the rest of
society. The Charter does not compel the state to achieve equality in
areas outside the government’s sphere of activity, such as in private sector
enterprises. Logically, if a measure intended to reduce inequality does not
have the effect of exacerbating a pre‑existing disadvantage faced by the
group in the situation that would prevail without state intervention, it is
constitutional. A fortiori, a measure that ameliorates the group’s
conditions is also consistent with the letter and the spirit of the Charter.
As this Court has held, such a measure will in fact be protected under
s. 15(2).

[67]There are a variety of socio‑economic
theories that advocate different visions of the appropriate way to redistribute
economic benefits and the implementation of mechanisms to promote social
justice. This Court’s role is not to dictate the best way to achieve a social
ideal or to comment on the appropriateness of policies underlying legislative
enactments: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at
p. 496; see also the dissent of Rothstein and Wagner JJ. in Saskatchewan
Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, at
paras. 116‑18.

[68]In sum, we cannot subscribe to the reasoning
proposed by Abella J., since we do not find that the gap between the
employees to whom the Act applies and the rest of society has widened as a
result of the enactment of the statutory amendments at issue. In this regard,
she errs in adopting a strict interpretation of ss. 76.9 and 101 of the
Act that limits their true scope. Correlatively, the Act does not perpetuate
pre‑existing disadvantages.

[69]The most recent pronouncement on the proper
analytical approach under s. 15(1) of the Charterwas in Kahkewistahaw
First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R.
548. The analysis has
two steps.

[70]At the first step, it must be determined whether
a law, on its face or in its impact, creates a distinction on the basis of an
enumerated or analogous ground: Taypotat, at
para. 19. To establish this, the claimant must show that the law at issue
has a disproportionate effect on him or her based on membership in an
enumerated or analogous group: Taypotat, at
para. 21. In terms of proof, it will generally
suffice to show that the law has “a disproportionately negative
impact on a group or individual that can be identified by factors relating to
enumerated or analogous grounds”: Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at
para. 64. In this regard, we agree with LeBel J., who, in Quebec v. A, correctly
explained the approach to take at the first step:

Thus,
the claimant can show that the impugned law creates a distinction directly by
imposing limitations or disadvantages on the basis of an enumerated or
analogous ground: see, inter alia, Miron, at para. 131;
Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769, at para. 52; Trociuk
v. British Columbia (Attorney General), 2003 SCC 34, [2003]
1 S.C.R. 835, at para. 10. The same is true where the law restricts
access to a fundamental social institution (Law, at para. 74) or
imposes obligations that are not imposed on others (Withler, at
para. 62). A claimant can also show that a law creates a distinction
indirectly where, “although the law purports to treat everyone the same, it has
a disproportionately negative impact on a group or individual that can be
identified by factors relating to enumerated or analogous grounds”: Withler,
at para. 64. At this stage, comparisons, if any, can help to demonstrate
the existence of an adverse distinction. [para. 189]

[71]In our view, in the case at bar, the
disadvantageous or prejudicial nature of the law, which is as a general rule
considered at the second step of the s. 15(1) analysis, must instead be
examined at the first step. At the first step, the Court is invited to engage
in a comparative exercise. As McLachlin C.J. and Abella J. stressed, “[i]nherent in the word ‘distinction’ is the idea that the claimant is
treated differently than others. Comparison is thus engaged, in that the
claimant asserts that he or she is denied a benefit that others are granted or
carries a burden that others do not, by reason of a personal characteristic
that falls within the enumerated or analogous grounds of s. 15(1)”: Withler, at para. 62.

[72]By its nature, the Act entails distinctions that
may affect a group consisting essentially of women. It would be absurd if an approach
whose focus was on discriminatory effects did not deal first with the
issue of the disadvantage resulting from one or more of those distinctions, at
least on a prima facie basis.

[73]The second step is more onerous, as it requires
proof that the disadvantage is discriminatory in that the law “fails to
respond to the actual capacities and needs of the members of the group and
instead imposes burdens or denies a benefit in a manner that has the effect of
reinforcing, perpetuating or exacerbating their disadvantage”: Taypotat, at para. 20.

B.Review of Kapp and Cunningham

[74]According to the principles that were laid down
in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, and reaffirmed in Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011]
2 S.C.R. 670, at para. 44, whether s. 15(2) applies
should generally be determined before turning to the second step of the
s. 15(1) analysis. In Kapp, the Court found that the advantage of
dividing the analysis in this way was to make it unnecessary to conclude that
the equality guarantee had been violated before saving the measure under
s. 15(2):

In
other words, once the s. 15 claimant has shown a distinction made on an
enumerated or analogous ground, it is open to the government to show that the
impugned law, program or activity is ameliorative and, thus,
constitutional. This approach has the advantage of avoiding the symbolic
problem of finding a program discriminatory before “saving” it as ameliorative,
while also giving independent force to a provision that has been written as
distinct and separate from s. 15(1). Should the government fail to
demonstrate that its program falls under s. 15(2), the program must then
receive full scrutiny under s. 15(1) to determine whether its impact is
discriminatory.

(Kapp,
at para. 40)

[75]In Kapp, the claimants, who were
commercial fishers and mainly non‑Aboriginal, were not members of the
group to which an enumerated or analogous ground applied that benefited from
the program’s advantages. The claimants were pleading reverse discrimination,
arguing that the benefit resulting from a communal fishing licence granted to
three Aboriginal bands violated s. 15 of the Charter
(para. 1). It is true that in such circumstances, there is a certain
advantage to not explicitly acknowledging that a measure has discriminatory
effects on one or more groups to which it does not apply before concluding that
those effects are justified by the objective of achieving substantive equality
for another group that is disadvantaged. In that situation, the proposed
approach is not really problematic.

[76]In the case at bar, it is the group to which an
enumerated ground applies that raises the discriminatory nature of the effects
of a law whose specific object is the amelioration of conditions of the group’s
members. If the approach proposed in Kapp were applied, it would have
the effect of terminating the analysis prematurely. It is not impossible or
unimaginable that even though a law genuinely has the amelioration of a group’s
conditions as its object, its effect might be to widen the prejudicial
and discriminatory gap in relation to the rest of society: J. McGill,
“Section 15(2), Ameliorative Programs and Proportionality Review” (2013), 63 S.C.L.R. (2d) 521. The
group to which the measure or law applies would then find itself in a
constitutional cul‑de‑sac: even though the effects of a government
action would ultimately exacerbate the discrimination against the group, the
courts would have to defer to the government because its intentions were
benevolent. But such a situation would be contrary to the approach favoured by
this Court in the equality context:Andrews, at p. 182; Quebec v. A, at
para. 333.

[77]It is our opinion that such circumstances
require us to defer the s. 15(2) analysis until after the entire s. 15(1)
analysis has been completed. First of all, that will make it possible to
determine whether the government action creates or perpetuates a discriminatory
disadvantage. It is, obviously, not necessary to “save” a measure that does not
violate s. 15. In addition, the second step of the s. 15(1) analysis
will help in identifying the law’s real object. Thus, if a law establishes
mechanisms that create no benefit for the group, it probably does not
genuinely have the amelioration of the group’s conditions as its object. It
will be more difficult to rule on this point if the law creates both benefits
and disadvantages. Although the test remains objective, and deferential to the
legislature’s preferences, there is no question that the true effect of the
measures the legislature adopts can be taken into account: Kapp, at
para. 49.

[78]Finally, the approach we recommend in this case
is consistent with the combined effect of s. 15(1) and s. 15(2),
namely to promote substantive equality: Kapp, at para. 16. It
should be borne in mind that the Court acknowledged in Kapp that the
test it was proposing at that time was only at an early stage in the
development of the case law on s. 15(2) and that “future cases may demand
some adjustment to the framework” (para. 41).

[79]In Cunningham, the Court was right to
decline to alter the analytical framework for a group that was arguing that its
exclusion from a program conferring a benefit on another group with
characteristics similar to its own to which an enumerated ground applied was
unconstitutional (para. 53). In that case, the claimants, who were members
of the Peavine Métis settlement as well as being status Indians, were
challenging the constitutional validity of certain provisions of the Metis
Settlements Act, R.S.A. 2000, c. M‑14, that excluded status
Indians from membership in any Métis settlement. They alleged, among other
things, that they were deprived of the benefits of the program on the basis of
race. We are of the view that in such cases in which a group or subset of a
group is included under one of the enumerated or analogous groups but is
otherwise excluded from the group to which the measure specifically applies, it
will always be appropriate to follow the approach from Kapp, because the
advantage of doing so will remain relevant.

[80]In sum, it is only where the claimant is a
member of the group to which the law specifically applies that the
s. 15(2) analysis should be deferred until after that of s. 15(1). In
any situation in which the claimant is not a member of the group, the order set
out in Kapp
should be followed.

[81]In her reasons, Abella J. makes it seem a
simple matter to determine whether the group is affected by an adverse
distinction based on sex. In her opinion, this distinction is obvious, given
that the purpose of the Act is to attempt to redress pay inequities that exist
between men and women in the workplace (Abella J.’s reasons, at
para. 29). It is our view, however, that at this step of the analysis the
claimant must show not only the mere existence of a distinction in the Act, but
also a form of disadvantage flowing from that distinction.

[82]Abella J. asserts that the effects of the
impugned measure should not be taken into account at the first step of the
s. 15(1) analysis so as to avoid weeding out claims on technical bases.
Yet this is not a mere formality or technical issue. What must be determined is
whether the measure has any effect on the group. A claimant who is
unable to show prima facie that a measure has disadvantageous effects
has no chance of succeeding. This being said, “disadvantage” and “prejudice”
are flexible concepts that can take many forms.

[83]Whether the effects of ss. 76.3, 76.5 and
103.1 para. 2 of the Actare disadvantageous is a complex question.
Without imposing an unduly heavy burden at this first step of the analysis under s. 15(1) of the Charter, this
question warrants further consideration. Our colleague has identified a
distinction under s. 15(1), but in our view, her analysis is tainted in two
ways. First, its effect is that any attempt at amelioration whose objectives
are not achieved in their entirety would infringe s. 15(1). For the
reasons set out below, we cannot subscribe to this position. Second, our
colleague’s negative depiction of the provisions notwithstanding, it is clear
from a careful review of them that they are not actually disadvantageous.

[84]In the first place, Abella J.’s argument
that the Act does not confer benefits but is instead a vehicle for upholding a fundamental right guaranteed by the Charter
of human rights and freedoms, CQLR, c. C‑12 (“Quebec Charter”)
may seem appealing. From that perspective, given that the Act’s objective is in
her view to raise compensation to the level of the advantaged group, that is,
to the level of persons holding positions that fall into predominantly male job
classes, the Act will almost inevitably be disadvantageous if this objective is
not achieved perfectly, since such a failure would have the effect of
“perpetuating” the pre‑existing disadvantage. However, although achieving
pay equity is desirable in our society, the Charter does not confer
constitutional status on the achievement or the maintenance of pay equity. What
Abella J. does in criticizing the “episodic” and “partial” nature of the
maintenance obligations provided for in the amendments to the Act
(Abella J.’s reasons, at para. 33) and noting that the amendments
“suspen[d]” the right of those women to be protected from pay discrimination
during five‑year intervals (Abella J.’s reasons, at para. 52)
is in effect to constitutionally entrench pay equity. But pay equity for
private sector enterprises is a creation of the Quebec legislature and does not
have constitutional status.

[85]In passing, the respondents’ position must also
be rejected, as they compare the amendments to the Actwith the previous version of the Act. Such an
approach would have the effect of constitutionally entrenching one mechanism
that confers benefits on a group to which an enumerated or analogous ground
applies, to the detriment of other, equally valid, mechanisms. It would then no
longer be open to the legislature to explore other avenues. A legislature that
wanted to experiment by, for example, conferring benefits that were less
substantial or simply different would run the risk of having a majority of this
Court question the validity of its measure. That would be an absurd outcome.
Quebec’s amendments to the Act would be declared to be invalid, but a province
that does not yet have similar legislation applicable to the private sector,
such as Prince Edward Island, would be able to enact the Act at issue here word
for word without having the constitutionality of its legislation questioned.
The result would be to impose on Quebec, and on any province that has been a
pioneer in the fight against pay inequities, obligations that are not imposed
on the other provinces.

[86]Also, it is just as wrong for Abella J. to state
that, for women to whom the Act applies, the promise of pay equity found in s.
19 of the Quebec Charter is a right without a remedy except once every
five years (Abella J.’s reasons, at para. 39). Section 19
para. 3 of the Quebec Charter expressly provides that
“[a]djustments in compensation and a pay equity plan are deemed not to
discriminate on the basis of gender if they are established in accordance
with the Pay Equity Act”. Is it necessary to point out that the Quebec
Charter does not have constitutional status?

[87]If it were necessary to take Abella J.’s
reasoning further, it would have to be concluded that s. 19 of the Quebec
Charter is also unconstitutional, as it provides for no remedy for
employees working in enterprises with no male comparators. As for other
employees, an inappropriate hurdle would be thrown in their way, as they would
in that regard, too, bear the heavy burden (Abella J.’s reasons, at
para. 38) of bringing an action and demonstrating that their employer does
not grant “equal salary or wages to the members of his personnel who perform
equivalent work at the same place”. Thus, it would have to be concluded that
the Quebec Charter imposes a burden that men do not have to discharge.
It is impossible for us to agree with this position.

[88]In any event, the benefits of the Act, as amended in 2009 (S.Q. 2009,
c. 9), are clear. Let us begin by reading the provisions at issue that our
colleague finds to be unconstitutional:

76.3. After
conducting a pay equity audit, the pay equity audit committee, or the employer
in the absence of such a committee, shall post the audit results for
60 days in prominent places easily accessible to employees. The posting
shall include

(1) a
summary of the pay equity audit process;

(2) a
list of the events leading to compensation adjustments;

(3) a
list of the predominantly female job classes that are entitled to compensation
adjustments;

(4) the
percentage or amount of the compensation adjustments to be paid; and

(5) the
posting date and information on the rights exercisable under section 76.4
and the time within which they may be exercised.

The pay equity audit committee, or the employer
in the absence of such a committee, shall, by a means of communication likely
to reach the employees, inform them of the posting and provide details such as
the posting date, the posting period and how they may access its content.

76.5. Subject to
the third paragraph of section 101, the compensation adjustments apply
from the date that is the time limit for the new posting under the second
paragraph of section 76.4.

Unpaid compensation adjustments shall bear
interest at the legal rate from that date.

103.1.
. . .

If
the complaint was filed under section 100 in connection with a pay equity
audit, the Commission may not determine compensation adjustments applicable
prior to the date referred to in the first paragraph of section 76.5.

[89]Since the amendments came into force in 2009,
the employees in question have enjoyed a significant benefit in comparison with the previous situation.
That benefit takes the form of a periodic pay equity audit without their
needing to exercise a remedy, and where applicable, a compensation adjustment
for the future. This represents a major legislative change in direction. The
former scheme was said to be “passive” in that it imposed only a general
obligation not to discriminate on employers. It was left to employees to file
complaints. Generally speaking, the “passive” legislation was harshly
criticized, in part because it could result in significant emotional and
financial costs as well as institutional delays: Report of the Commission on
Equality in Employment (1984),at p. 238; on the experience
under the Canadian Human Rights Act, R.S.C. 1985, c. H‑6, see
Pay Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (2004),
at pp. 97‑106. The current mechanism, on the other hand, can be
described as “proactive” in that it requires employers to periodically review
remuneration practices and to disclose information relevant to that exercise:
C. Sheppard, Inclusive Equality: The Relational Dimensions of Systemic
Discrimination in Canada (2010), at p. 29. Thus, contrary to our
colleague’s position, the Act has not legislatively entrenched discrimination
by imposing a mechanism that perpetuates it. Nor does the Act impose additional
hurdles, quite the contrary.

[90]In addition, s. 76.9 of the Act provides
that “[n]o employer . . . may, as regards the maintenance of pay
equity, act in bad faith or in an arbitrary or discriminatory manner or exhibit
gross negligence with regard to employees in the enterprise”. Section 101 para. 3 of the Act
provides correlatively that “if an employer contravenes section 76.9, the
Commission [de l’équité salariale, now the Commission des normes, de l’équité,
de la santé et de la sécurité du travail] may determine that the adjustments in
compensation are payable from the date the contravention occurred”. A mechanism
therefore exists to avoid creating a gap in the Actof which it might be
possible to take deliberate advantage. With respect, our colleague
Abella J. is in our view mistaken in concluding that the cumulative effect
of the sections in issue is to give employers an “amnesty” in respect of
compensation adjustments that would be required between the periodic audits
(para. 33).

[91]It is also incorrect to say that s. 76.9 of
the Act applies only in cases of discrimination that is intentional or
in bad faith (Abella J.’s reasons, at para. 35). As we mentioned
above, s. 76.9 also applies to arbitrary or discriminatory
conduct. It is absurd to maintain that the mechanism provided for in the Act
amounts to a form of toleration on the government’s part of the undervaluation
of women’s pay (Abella J.’s reasons, at para. 38). The Act, when
considered as a whole, creates a complete “hybrid” scheme that allows for a
periodic review of compensation and provides a retroactive remedy in case of
abuse. It thus addresses the problem of systemic discrimination in addition to,
among others, that of intentional discrimination.

[92]Moreover, the Act’s ameliorative effect becomes
clear when the situation is considered through the lens of the comparator
group. Although caution is required in choosing such a group, given that this choice could dictate the result of
the analysis, an appropriate comparator group with identical characteristics
does actually seem to exist. This Court has in fact never abandoned or proscribed
the use of comparative evidence. It merely issued a warning against overly
rigid formalism. In the circumstances of this appeal, the probative value of
the comparative evidence, viewed from a contextual standpoint, outweighs that
risk: Withler, at para. 65; Hodge v. Canada (Minister of Human
Resources Development), 2004 SCC 65, [2004] 3 S.C.R.357, at
para. 23. What must be done is to compare the situation of employees in an
enterprise that has 10 or more employees, to whom the Act accordingly applies,
with that of employees in an enterprise that has fewer than 10 employees.
The Act’s beneficial effect then becomes apparent, as the latter employees do
not benefit from a periodic audit of their compensation in conjunction with a
remedy. They are protected only by s. 19 of the Quebec Charter,
which provides for equal wages for equivalent work in the same workplace.
Employees in an enterprise without a male comparator group and with fewer than
10 employees thus cannot use a complaint mechanism comparable to the one
provided for in s. 101 should their employer modify their duties without
taking into account the insidious factors at the root of the systemic
discrimination from the standpoint of a correlative audit of their
remuneration. So how can it be argued, focusing on the effects of the
statutory amendments, that the Act has widened the gap between the employees in
question and the rest of society or that the Act perpetuates discrimination?

[93]In the end, does the prospective effect of the
compensation adjustments under s. 76.5 or the posting provided for in
s. 76.3 really create an adverse distinction based on sex, as our
colleague maintains? We have great difficulty accepting such a conclusion,
although it is true that the Court has in the past ruled summarily on the first
step of the s. 15(1) analysis despite the existence of a doubt as to the
nature of the disadvantage: Ermineskin Indian Band and Nation v. Canada,
2009 SCC 9, [2009] 1 S.C.R. 222, at para. 189. In our view, the second
step of the analysis dispels any remaining doubt about the constitutional
validity of the amendments.

[94]At the second step of the analysis under
s. 15(1) of the Charter, it is necessary to determine whether the amendments are
discriminatory by considering whether they respond to the actual capacities and
needs of the members of the group or instead impose a burden or deny a benefit
in a manner that has the effect of reinforcing, perpetuating or exacerbating
their disadvantage: Taypotat, at para. 20; Quebec v. A, at
para. 332; Kapp, at para. 17.

[95]We begin by distinguishing Newfoundland
(Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381. In that
case, the employees had acquired a contractual right to a wage adjustment,
which had had the effect of crystallizing that right, but that is not what
happened in the instant case. Binnie J. noted that the legislature’s
adoption of a positive measure does not preclude it from repealing the
legislation in question:

The respondent says that female workers have
no right under s. 15(1) of the Charterto equal pay for work of
equal value. What the government gave in 1988, the government could take away
in 1991. It is true that in the ordinary course, legislative adoption of a
remedial measure does not “constitutionalize” it so as to fetter its repeal:
Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at
p. 563. Here, however, the provincial government signed a Pay Equity
Agreement on June 24, 1988 which changed the legal landscape by creating
enforceable contractual rights to end pay discrimination by a procedure
contractually binding on all of the parties. The Pay Equity Agreement was
incorporated into the public sector collective agreements.

This process converted pay equity from a
policy argument into an existing legal obligation for the benefit of the female
hospital workers. The purpose of the Public Sector Restraint Act was
to reduce the women’s pay below their contractual entitlement. Its intended
effect was to pay them less than was paid to men for work of equal value. Passage
of the Act on April 18, 1991 left women hospital workers worse off than
they were on April 17, 1991. The issue is whether the disadvantage
thus imposed on April 18, 1991 amounted to discrimination within the scope
of s. 15(1) of the Charter. [Emphasis added.]

[98]Unlike in Vriend v. Alberta, [1998] 1
S.C.R. 493, in which the failure to protect homosexuals in the Individual’s Rights Protection Act,R.S.A.
1980, c. I‑2, had the effect of reinforcing the
prejudice against that group, the impugned provisions do not have the effect of
imposing burdens, obligations or disadvantages on women that are not imposed on
others, or of withholding or limiting access to opportunities and advantages
that are available to other members of society. By way of illustration, factors
like the ones set out in Law
can be helpful in determining whether a particular distinction is
discriminatory. This is not a “step‑by‑step” analysis, however. The
analysis remains contextual, and not formalistic. Indeed, the factors are not
exhaustive and will be considered solely to enhance our analysis. In sum, our
objective is to determine the actual situation of the group and assess the
potential of the impugned law to worsen their situation: Withler, at
paras. 38 and 66; Quebec v. A, at para. 331; N.A.P.E.,
at para. 44; Law, at para. 72.

[99]Women clearly face systemic discrimination in
matters of compensation (Centrale des syndicats du Québec, at
para. 58). However, the impugned sections do not perpetuate or reinforce
the idea that women can be paid less simply because they are women. The Act’s
objective is to permanently eradicate pay inequities by
establishing a maintenance
mechanism in ss. 76.1 to 76.9. Moreover, s. 76.9 sends a clear
message. It provides that no employer may “act in bad faith or in an arbitrary
or discriminatory manner or exhibit gross negligence with regard to employees
in the enterprise”. Should an employer do so, a retroactive remedy is provided
for in s. 101.

[100]There is a risk that a change in an enterprise
to which the Act applies that has an impact on pay equity and that occurs at
the start of the five‑year period preceding a pay equity audit will be
influenced by elements of systemic discrimination. The re‑emergence of
disadvantages usually occurs when job‑related duties are reorganized or
changed. However, an employer that is in compliance with its obligations under
the Act is required by s. 76.9 not to act arbitrarily as well as to
eliminate any instance of inequitable compensation immediately by addressing
the new elements of systemic discrimination. Section 76.9 is broadly
worded and should be construed liberally to ensure that its object is attained:
Interpretation Act, CQLR, c. I‑16, s. 41. As well, as
Abella J. points out, the Court has considered s. 47.2 of the Labour
Code, CQLR, c. C‑27, the wording of which is almost identical to
that of s. 76.9 of the Act. LeBel J., writing for the Court in
Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R.
207, defined that section’s scope as follows:

The
Quebec Labour Code has partially codified the duty of representation. It
is defined in the following terms in s. 47.2 L.C.:

47.2. A certified association shall not act in bad faith or in an
arbitrary or discriminatory manner or show serious negligence in respect of
employees comprised in a bargaining unit represented by it, whether or not they
are members.

The
law also prohibits discriminatory conduct. This includes any attempt to put an
individual or group at a disadvantage where this is not justified by the labour
relations situation in the company. For example, an association could not
refuse to process an employee’s grievance, or conduct it differently, on the
ground that the employee was not a member of the association, or for any other
reason unrelated to labour relations with the employer (see D. Veilleux,
“Le devoir de représentation syndicale: Cadre d’analyse des obligations
sous‑jacentes” (1993), 48 Relat. ind. 661, at pp. 681‑82;
Adams, supra, at pp. 13‑18 to 13‑20.1).

The
concepts of arbitrary conduct and serious negligence, which are closely
related, refer to the quality of the union representation. The
inclusion of arbitrary conduct means that even where there is no intent to
harm, the union may not process an employee’s complaint in a superficial or
careless manner. It must investigate the complaint, review the
relevant facts or seek whatever advice may be necessary; however, the employee
is not entitled to the most thorough investigation possible. The
association’s resources, as well as the interests of the unit as a whole,
should also be taken into account. The association thus has considerable
discretion as to the type and extent of the efforts it will undertake in a
specific case. (See Adams, supra, at pp. 13‑20.1 to 13‑20.6.)

The
fourth element in s. 47.2 L.C. is serious negligence. A gross
error in processing a grievance may be regarded as serious negligence despite
the absence of intent to harm. However, mere incompetence in processing the
case will not breach the duty of representation, since s. 47.2 does not
impose perfection as the standard in defining the duty of diligence assumed by
the union. In assessing the union’s conduct, regard must be had to the
resources available, the experience and training of the union representatives,
who are usually not lawyers, and the priorities connected with the functioning
of the bargaining unit (see Gagnon, supra, at pp. 310‑13;
Veilleux, supra, at pp. 683‑87; Adams, supra, at
p. 13‑37).

Bad faith and discrimination both involve
oppressive conduct on the part of the union. The analysis therefore
focuses on the reasons for the union’s action. In the case of the third
or fourth element, what is involved is acts which, while not motivated by
malicious intent, exceed the limits of discretion reasonably exercised. The
implementation of each decision by the union in processing grievances and
administering the collective agreement therefore calls for a flexible analysis
which will take a number of factors into account. [Emphasis added;
paras. 47‑52.]

[101]It must therefore be concluded that the new
mechanism established by the 2009 amendments responds to the needs of the women
concerned by effectively preventing abuse by employers and also by providing
them with a periodic audit of their remuneration. Consequently, this factor
also favours the appellant’s argument.

[102]Moreover, it was open to the Quebec legislature
to opt for mechanisms that were appropriate and practical for private sector
enterprises. Further to the example Abella J. gives in her reasons, ensuring
that persons with disabilities are not discriminated against does not mean that
enterprises have an obligation to repave access ramps every week
(Abella J.’s reasons, at para. 54).

[103]Our colleague relies on the reasoning adopted in
Vriend, in which the Individual’s Rights Protection Act had in
1990 prohibited discrimination based on any of the following grounds: race,
religious beliefs, colour, gender, physical disability, mental disability, age,
ancestry or place of origin. The statute had subsequently been amended to add
other grounds to the existing ones, namely marital status, source of income and
family status. The Individual’s Rights Protection Act established a
remedy for all members of society so that they could avail themselves of any of
the grounds of discrimination provided for in the statute. However, the Alberta
government had not deemed it necessary to include sexual orientation in the
statute as a prohibited ground. Individuals who were discriminated against on
the basis of their sexual orientation were therefore excluded from the
protection of the statute and found themselves worse off than they had been
before it came into force, given that they were not protected by the statute as
were other disadvantaged groups. As a result, the gap between their situation
and that of the rest of society widened and their marginalization increased. In
short, society had moved forward, but their situation remained unchanged.

[104]Thus, unlike a general protection scheme, such
as the one established by the Individual’s Rights Protection Act
considered in Vriend, the scheme established by the Act deals with only
one ground of discrimination, namely sex, and applies to only a small portion
of female employees in Quebec, those who hold positions in predominantly female
job classes in enterprises with 10 or more employees: s. 4 of the
Act. In the instant case, this factor is neutralized by the fact that it is the
group benefiting from the Actthat is challenging its effects. It cannot
therefore be argued that they are not afforded “the equal protection and equal
benefit of the law” (s. 15(1) of the Charter), as the Act
specifically provides them with a mechanism that affords them both a remedy in
the event of discriminatory or arbitrary treatment (s. 76.9 of the Act)
and the benefit of an audit of their jobs for the purpose of identifying and
redressing pay inequities linked to systemic discrimination.

[105]There is no doubt that work is an important
aspect of life and that, for many people, it is a large part of their identity:
N.A.P.E., at paras. 49‑50. However, the fact that one is in a
situation in which the compensation received for one’s job seems inadequate,
and which offends one’s sense of personal dignity, does not mean that the law
creates a discriminatory disadvantage. In enacting the Actand the 2009
amendments, the Quebec legislature has recognized the nature of pay equity and
its importance for women. In short, although the interest in question is
important in our society, the adopted measures have not constitutionally
entrenched pay equity such that they would be impossible to modify.

[107]Alternatively, even it were to be held that the
specific mechanism created by the statutory amendments can be considered
discriminatory, the Act as a whole should be protected under s. 15(2).

[108]According to the principles laid down in Cunningham,
what must be determined is whether the law has a genuine ameliorative
object:

To
qualify as a genuinely ameliorative program, the program must be directed at
improving the situation of a group that is in need of ameliorative assistance: Kapp,
at para. 41. There must be a correlation between the program and the disadvantage
suffered by the target group: Kapp,at para. 49. The goal is
to promote the substantive equality of the group: Kapp, at
para. 16. To ascertain whether these conditions are met, one looks first
to the object of the program, and then asks whether it correlates to actual
disadvantage suffered by the target group. [para. 59]

[109]Furthermore, a distinction that serves or
advances the ameliorative object has the effect of supporting the goal of
s. 15 of the Charter, namely the promotion of substantive equality:
Cunningham,at para. 45.

[110]In Kapp, the Court referred to the role
of s. 15(2) in supporting the implementation of measures to combat
systemic discrimination. Given that Quebec’s National Assembly has answered the
call in this regard, the entire Act should be protected:

The Royal Commission Report on Equality
in Employment, whose mandate was to determine whether there should be
affirmative action in Canada and on which McIntyre J. relied to develop
his theories of discrimination and equality, set out the principles underlying
s. 15(2), at pp. 13‑14:

In
recognition of the journey many have yet to complete before they achieve
equality, and in recognition of how the duration of the journey has been and is
being unfairly protracted by arbitrary barriers, section 15(2) permits
laws, programs, or activities designed to eliminate these restraints. While
section 15(1) guarantees to individuals the right to be treated as equals
free from discrimination, section 15(2), though itself creating no
enforceable remedy, assures that it is neither discriminatory nor a violation
of the equality guaranteed by section 15(1) to attempt to improve the
condition of disadvantaged individuals or groups, even if this means treating
them differently.

Section 15(2)
covers the canvas with a broad brush, permitting a group remedy for
discrimination. The section encourages a comprehensive or systemic rather
than a particularized approach to the elimination of discriminatory barriers.

Section 15(2)
does not create the statutory obligation to establish laws, programs, or
activities to hasten equality, ameliorate disadvantage, or eliminate
discrimination. But it sanctions them, acting with statutory acquiescence.

(Kapp,
at para. 32 (emphasis added), quoting the Report of the Commission on
Equality in Employment (1984), at pp. 13‑14.)

[111]There is no doubt that the Actgenuinely
has the promotion and achievement of substantive equality as its object. The
correlation between that object and the chosen mechanism is clear, even if the
mechanism is not perfect. The appeal should also fail at this stage of
the analysis.

[112]In summary, it remains true that it is not open
to Parliament or to a provincial legislature to enact a law whose provisions
single out a disadvantaged group for inferior treatment: Auton, at
para. 41, citing Corbiere v. Canada (Minister of Indian and Northern
Affairs), [1999] 2 S.C.R. 203. But if the law confers a clear benefit
in comparison with the situation that would exist had it not been enacted, the
legislature is free to adopt the mechanism of its choice: Auton, at
para. 41, citing Granovsky v. Canada (Minister of Employment and
Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 61; Nova
Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, at
para. 55; Hodge, at para. 16.

[113]Given that the sections at issue do not violate
the Constitution, the respondents should undoubtedly have used the democratic
avenues available to them in order to object to the enacted amendments and
obtain the amendments they wanted rather than asking this Court to substitute
policies it prefers for ones that were adopted democratically.

[114]In our view, therefore, the appeal should be
allowed and the cross‑appeal dismissed.

Solicitors for the interveners The Professional Institute of the
Public Service of Canada, The Canadian Association of Professional Employees, The
Association of Canadian Financial Officers and The Professional Association of
Foreign Service Officers: Goldblatt Partners, Ottawa.

11(1) It
is a discriminatory practice for an employer to establish or maintain
differences in wages between male and female employees employed in the same
establishment who are performing work of equal value.

(2) In assessing the value of work performed by employees employed in
the same establishment, the criterion to be applied is the composite of the
skill, effort and responsibility required in the performance of the work and
the conditions under which the work is performed.

[2]At the time of ratification, Canada issued a declaration relating to
Art. 11(1)(d) (see 1257 U.N.T.S. 496). That declaration was withdrawn in 1992
(see 1676 U.N.T.S. 554), but it stated that Canadian legislators “have
addressed the concept of equal pay referred to in article 11(1)(d) by
legislation which requires the establishment of rates of remuneration without
discrimination on the basis of sex. The competent legislative authorities
within Canada will continue to implement the object and purpose of article
11(1)(d) and to that end have developed, and where appropriate will continue to
develop, additional legislative and other measures.”

[3] Employees of employers with fewer than 10 employees who seek
to redress pay inequities must still resort to complaints under s. 19 of the Quebec
Charter. Conversely, employees covered by the Pay Equity Act are
barred from pursuing complaints under the Quebec Charter and may only
seek recourse under the processes set out in the Pay Equity Act.

[4] Sections 41 and 42 set out specific situations in which the
employer’s obligations continue notwithstanding changing circumstances. They
stated, in part:

41.
If, before the completion of a pay equity plan, an association is
certified under the Labour Code (chapter C-27) to represent employees in the
enterprise, obligations relative to the establishment of the plan remain
unchanged.

.
. .

42.
The alienation of the enterprise or the modification of its juridical
structure shall have no effect upon obligations relative to adjustments in
compensation or to a pay equity plan, which shall be binding on the new
employer.

Where two or more enterprises are
affected by a modification of juridical structure by amalgamation or otherwise,
the provisions of this Act which apply according to the size of the enterprise
shall, in respect of the enterprise resulting from the modification, be
determined to be those applicable to the enterprise which employed the greatest
number of employees.